Seiler v. O'Maley

• Decision Date: 14 January 1921
• Citation: 190 Ky. 190,227 S.W. 141
• Parties: SEILER, SAFETY COM'R, ET AL. v. O'MALEY.
• Court: Kentucky Court of Appeals

227 S.W. 141

190 Ky. 190

SEILER, SAFETY COM'R, ET AL. v. O'MALEY.

Court of Appeals of Kentucky.

January 14, 1921

Appeal from Circuit Court, Kenton County, Criminal, Common-Law, and Equity Division.

Suit by J. M. O'Maley against G. A. Seiler, Safety Commissioner of the City of Covington, and others. Judgment for the plaintiff, and defendants appeal. Affirmed.

A. E Stricklett, of Covington, for appellant.

F. J Hanlon, of Covington, for appellee.

THOMAS J.

The purpose of this suit, filed by appellee and plaintiff below Dr. J. M. O'Maley, against the appellants and defendant below, city of Covington and certain of its officers, was to have himself declared the duly elected and qualified health officer of the city, and to compel defendants to recognize him as such officer and to pay to him the salary fixed for such officer (which was $1,250) at such times and in such amounts as the law directs. The relief sought is resisted by defendants upon the sole ground that at the meeting of the board of health for the city of Covington (which was on October 29, 1920) at which the plaintiff claims to have been elected health officer for the city there was not a quorum of that board present, and that his pretended election was invalid, null, and void. Upon final submission the circuit court adjudged plaintiff to have been duly elected health officer for the city and ordered and directed defendants to pay him his salary as provided by ordinance, and, complaining of that judgment, defendants prosecute this appeal.

The present statute creating the city board of health for a city of the population of Covington, and providing for the election by it of a city health officer, is subsection (5) of section 1, c. 65, p. 290, of the Session Acts of 1918, and is section 2054a21, vol. 3, Kentucky Statutes 1918. It authorized the city council of all cities of 10,000 inhabitants or more under certain circumstances, which it is admitted exist in this case, to appoint a board of health for the city to consist of six persons not members of the council, at least three of whom shall be competent physicians, and "the mayor of such city shall be ex officio a member of such board of health." It is made the duty of the board of health as thus constituted to elect a competent physician as city health officer, and it is provided that such health officer after his election shall also be an ex officio member of the board. In the meeting at which plaintiff claims to have been elected there were present three of the six appointed members and the mayor, who by the statute was an ex officio member of the board. Defendants contend: (a) That the mayor, being only an ex officio member, cannot be counted in estimating a quorum of the board, and that without him there were only three of the six appointed members present, which number did not constitute a quorum. If mistaken in this, they then contend: (b) That if the mayor as an ex officio member of the board may be counted in estimating a quorum for the purpose of transacting business, then the health officer provided by the act, who when elected is likewise an ex officio member of the board, should also be counted in estimating a quorum, which, if done, would make the entire membership of the board consist of eight members, and that the four present at the meeting when plaintiff was elected did not constitute a quorum. On the other hand, plaintiff insists that the mayor, as ex officio member of the board, is a member thereof for all purposes, including the creation of a quorum, as much so as is any of the appointed members of the board, and that until the election of a health officer the board consists of only seven members, four of whom would constitute a quorum for the transactions of business, and that at the meeting in question, there being the latter number present, he was duly elected.

The common-law rule as to what constitutes a quorum of a representative body consisting of a definite number of members is that a majority of the authorized membership shall constitute a quorum for the purpose of transacting business, but it is everywhere held and recognized that it is competent for the statute, or the Constitution, creating the particular body to prescribe the number of members that shall be necessary to constitute a quorum, or it may delegate to the created body the authority to so prescribe. 28 Cyc. 330, 331; 19 R. C. L. 888; Dillon on Municipal Corporations (5th Ed.) vol. 2, § 513; Morrill v. Little Falls Manufacturing Co., 53 Minn. 371, 55 N.W. 547, 21 L. R. A. 174, and annotations; Barry v. Town of New Haven, 162 Ky. 60, 171 S.W. 1012; McQuillin on Municipal Corporations, vol. 2, § 594; City of Somerset v. Smith, 105 Ky. 678, 49 S.W. 456, 20 Ky. Law Rep. 1488; and Pinson v. Morrow, Governor, 189 Ky. 291, 224 S.W. 879.

We find no statutory provision prescribing the number necessary to constitute a quorum of the board of health of the city of Covington. In the act supra creating the board there are other provisions relative to county and district boards of health (subsections 10 and 15 of section 2054a), and there are provisions with reference to what shall constitute a quorum of county and district health boards. In subsection 21 of that section (being the one creating the health board now under consideration) it is said:

"Such local board shall have the same powers within its respective cities as local boards for counties are invested with by this chapter."

This quoted sentence, however, refers only to the powers of the local board for cities of the population prescribed, and not to the procedure of such boards. We do not, therefore, think that we are authorized to read into the statute creating the local city boards the quoted provision prescribing what should constitute a quorum in county boards. If, however, we...